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Standing Committee on Justice and Human Rights


NUMBER 075 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Wednesday, November 8, 2017

[Recorded by Electronic Apparatus]

  (1530)  

[English]

     Good afternoon, everyone.

[Translation]

    It gives me great pleasure to welcome everyone today.

[English]

    We are going to move now to our amendments to Bill C-51.
    Today we have with us as a witness, Ms. Carole Morency, who is the director general and senior general counsel, from the Department of Justice's criminal law policy section, policy sector.
    Welcome again. You're here almost every week now.
    As well from the criminal law policy section, we have Mr. Matthew Taylor, acting senior counsel; and Ms. Nathalie Levman, counsel. Welcome.
    Colleagues, we have no amendments until clause 10.
    Mr. Nicholson.
    (On clause 1)
    I'm going to be making a motion that clause 1 not carry, and I'll speak to that.
    Okay, we'll start with clause 1. Are there any amendments on clause 1?
    Yes, Mr. Chair. I'd like to have us defeat clause 1. Clause 1 would have the effect of repealing section 49 of the Criminal Code. I'm prepared to speak to that at this point in time.
    Absolutely.
    Thank you very much, Mr. Chair.
    If you look at section 49, it says, among other things, that someone who wilfully, in the presence of Her Majesty, “does an act that is intended or is likely to cause bodily harm to Her Majesty” has committed an offence.
    Colleagues, I believe I mentioned this before. If you talk to people, they'll tell you that if you attack the head of state of any country, that is a serious offence. I know what people will say, that if you get into a scuffle in a bar, that's an offence and so is if you attack the Queen. Most people would say it becomes more serious if you are attacking the representative of the head of state.
    I've heard this before, and I'll make the same case again. Some people say that this hasn't been used in many years or maybe not at all. Again, as I pointed out, I remember as a law student at the University of Windsor the professor telling us that the treason sections are not used very often in Canadian history, and he said, “Thank God for that, that's good news, but it doesn't mean you should get rid of the treason sections because hopefully nobody is committing treason against Canada.”
    I don't understand even the timing of this. Nobody has a better record of public service, and certainly nobody has a better record over the last 65-plus years in Canada than Queen Elizabeth II. This is her 65th anniversary. She is the longest reigning monarch in British history and in Canadian history. Why would we be removing a section that says, if you try to cause bodily harm to Her Majesty, that is an indictable offence? Why would you want to do that?
    Again, I'm not buying the argument that it's like a dust-up in the schoolyard or something. It's not. This is important, and it sends a signal. As I said, the timing could not be worse.
    I move, and I believe it is seconded by my colleague Mr. Cooper, that we delete clause 1 of the bill.
    I don't think we need a mover or a seconder. You would just vote against it when I ask if clause 1 shall carry.
    Fair enough.

  (1535)  

    That's clearly understood.
    Are there any comments on that amendment?
    Ms. Khalid.
    I take Mr. Nicholson's point. However, I don't think we heard any testimony with respect to whether the section should be deleted from our Criminal Code even though there was ample opportunity for stakeholders to make that submission. With that respect, without having any evidence to that, I will not be supporting this.
    You will be supporting the clause and not supporting the deletion of the clause.
    Yes.
    I wonder if our officials could give us an opinion on whether it is useful, whether there are other aspects of the Criminal Code that come to bear in the event that this is gone.
     The minister alluded to the fact that other offences of general application would remain available to address the conduct captured by section 49. We're aware that it's been charged once. It was part of Canada's first Criminal Code in 1892. There has been one charge under it, and there have been no convictions under section 49.
    For additional information, other jurisdictions like New Zealand and Australia have repealed their equivalent offence of alarming Her Majesty, but undoubtedly the United Kingdom has retained its offence.
    Mr. McKinnon again.
    With all due respect, it's much more than just alarming Her Majesty. It “is intended or is likely to cause bodily harm to Her Majesty”.
    Would this be captured under a treason offence?
    It depends on the conduct of the specific case that's being considered. The historical origins of the offence are based on an individual who pointed a firearm at a monarch. That led to the enactment of the particular offence. If that were to happen in Canada today we would have a range of offences available, including our firearms-related offences, uttering threats, and things of that nature.
    May I ask a question?
    The way I read this wording, it doesn't cover a representative of Her Majesty, right? It wouldn't cover the Governor General. It would simply cover Her Majesty.
    I think it's limited to Her Majesty.
     Her Majesty has said she is not taking any long trips anymore, so it's unlikely she is going to be visiting Canada during the remainder of her reign. I just want to talk about whether or not this actually covers anything, but I guess you could say her successors would be covered by it.
    You could make that assumption, yes.
    In terms of Ms. Khalid's concern, Robert Finch, who is the Dominion chairman of the Monarchist League of Canada, submitted this to the justice committee with respect to this particular section, and is supportive of keeping this in the code.

  (1540)  

    Mr. Fraser.
    Mr. Chair, I saw a brief from the monarchist league organization, but I wasn't aware of it making any specific reference to keeping this provision in the code. It talked about other things dealing with other sections of the Criminal Code, for some reason.
    That is a good point, Mr. Fraser. It talked in general terms about the different rules she has, and with respect to the fact that she may not be making any more trips or something. However, that shouldn't change the fact that most people would consider, regardless of whether it's her or any of her successors, that it is a more serious offence if you attack the head of state.
    I agree, but Mr. Nicholson, could you just point us to the sentence, because I also read this brief from the Monarchist League and I couldn't find it. I only see the end:
...confident that the existing provision does not address a significant problem and that Canadians generally demonstrate respect for Monarch and Crown without the need for legislation or threat of punishment, we see no reason to oppose the removal of this section of the Criminal Code.
    I couldn't find where they oppose—
    That's a good point, Mr. Chair.
    I'm sorry for raising that matter with you, but I understood they were there. That being said, the timing of this is very bad. Going back to the argument, no case has been made for why it should be removed, quite frankly.
    Do any other colleagues wish to intervene on this one?
    If not, we're going to be voting on whether clause 1 shall carry. If you support Mr. Nicholson's argument, you would vote against clause 1 carrying, and if you do not support it, you would vote in favour of clause 1 carrying.
    (Clause 1 agreed to)
    The Chair: We have no amendments to clauses 2 through 9, colleagues. Does anyone propose to ask to amend anything in clauses 2 through 9? If not, perhaps we could carry them as a group, or vote on them as a group. I'll give you time to look at that.
    Colleagues, shall clauses 2 through 9 carry?
    (Clauses 2 to 9 inclusive agreed to)
    (On clause 10)
    The Chair: Now we move to the beginning of our amendments, with clause 10.
    The first amendment we have to clause 10 is LIB-1.
    Mr. Fraser.
     Thank you very much, Mr. Chair.
    The purpose of LIB-1 is to address some of the concerns that we heard in the evidence, namely that there needs to be a more clear articulation that identifies the codification of the R. v. J.A. judgment. I believe this amendment does that by making it clear that there must be contemporaneous consent at the time of the sexual activity and that it must be ongoing, that the consent cannot be valid if it was made in advance, and that the person engaging in sexual activity must be able to withdraw consent at any time.
    Also, this amendment would clearly identify that no consent given is a question of law, and it would make it clear that the defence of mistaken belief in consent as it relates to fact remains a proper, albeit a limited defence, based on the evidence we heard. That's why I'm putting forward LIB-1.
    LIB-1 is identical to LIB-4, so they carry together. They won't carry at the same time, but they're identical in the two different places.
    The rationale would be exactly the same for LIB-4, touching on another provision that has similar ideas.
    Yes, perfect, but this is only on LIB-1.
    Are there comments, colleagues, from anyone who wishes to intervene?
    Colleagues, there's just a small spelling mistake in the French version, in proposed subsection 153.1(2.2), where the word “terms” should be “termes”, with an “e”.
    Mr. Fraser, I'm sure you would consider that a friendly amendment.

  (1545)  

    Of course, yes.
    Are there any other comments, colleagues?
    (Amendment agreed to [See Minutes of Proceedings])
    The Chair: Now we move to NDP-1, which is from Mr. MacGregor.
    Colleagues, I'm proposing to replace line 14 on page 5 with the following:
in paragraph (a.l), including the reason that the complainant does not have the capacity to understand the nature of the activity or is not aware that they are not obliged to consent to the activity;
    Colleagues, my rationale for moving this amendment comes in particular from testimony that we heard at this committee from Professor Janine Benedet. She said:
I guess I see it as a definition of incapacity. We currently have a definition that says consent is “the voluntary agreement of the complainant to engage in the sexual activity in question”. The question the code leaves unanswered is in what circumstances that voluntary agreement could appear to be present but in fact is not. I shouldn't say that it leaves it unanswered. Some circumstances are enumerated, for example, where the accused induces the complainant to participate by abusing a position of trust.
    Professor Benedet's testimony was just seeking to have a little bit more clarification in this particular part of the code. I hope I've convinced my colleagues to support this amendment, just to give the code and this particularly important piece of our law the clarity that it deserves. I'll leave it to any comments. Thank you.
    Thank you.
    Are there comments, colleagues?
    Mr. Fraser.
    Yes. Thank you, Mr. MacGregor, for bringing this forward. It was part of some of the evidence we heard.
    The difficulty I would have with this amendment is that the bill as it currently stands has the broadest language possible. I would be concerned that by adding to that definition, it limits the scope of what is actually intended by having the broadest language. I think we keep it the way it is in the bill in order to catch all of the intended situations that are covered and in order not to limit it or be perceived, perhaps, to be limiting it, and open up that possibility to arguments by counsel.
     Thank you.
    Are there any other comments, colleagues?
    Mr. Nicholson.
    Mr. MacGregor makes a good point. It seems to me that this could better protect children and young persons, and persons who have disabilities. He did point out that we had evidence before this committee that is supportive of these changes, so I'll be supporting this amendment.
    Thank you.
    Mr. McKinnon.
    Thanks, Chair.
    I actually questioned Professor Benedet on this, and I certainly share the concern. That's where the questioning came from. However, I have talked about this with a number of people and I've come to understand that by incorporating that specific language in the law, it unfairly raises the barriers to the defence. We want to protect complainants, but we need to keep it fair for the defence as well. It does seem to narrow the language, which is broad. I also feel that the amendment that Mr. Fraser just brought forward will address this issue substantively, too.
    With regret, I'm not going to support this.
    Okay.
    Can I ask a question, either to Mr. MacGregor or the officials, or maybe to both? I have two questions, actually.
    One, with the fact that we have “unconscious” and then a general provision saying for anything else, is there any potential that by adding two specific examples into the second paragraph, the courts may then narrow the scope of what it's intended to mean?
    Two, would somebody not being aware that they are not obliged to consent to the activity not be a mistake of law, a misunderstanding of the law, as opposed to incapacity?

  (1550)  

    Regarding your second point, I agree with you. I'm concerned that this doesn't necessarily speak to the capacity issue that proposed paragraph 153.1(3)(b) speaks to.
    That raises a number of different points about your first question, which is that the law on when a person is so incapacitated that no consent is obtained in law is complex. The case law is difficult and there may be a number of different factors that are relevant. Singling out two factors, one of which may not relate to capacity, may have some unintended effects. As to what those effects could be, I cannot speculate, but I just point out that it is a complex issue of law, this particular paragraph, proposed paragraph 273.1(2)(b).
    Mr. MacGregor, did you want to answer also?
    No, I don't have....
    Colleagues, are there any further questions or comments?
    If not, do you want to close?
    I take your reasons. Unfortunately, I wasn't present for much of the testimony, so I had to go on reading a lot of transcripts. It just seemed to me that with Professor Benedet's testimony, she was really driving home on this particular point. We tried our best to take her intention, provide it to legislative drafters, and bring this forward. In my honest opinion, I don't see it so much as limiting it but just underlying another reason consent cannot be obtained. To me, that capacity to understand the nature of what's going on is actually broadening this section.
    In any case, I'm prepared to accept the will of this committee, so I'm prepared to go to a vote.
    Thank you very much.
    (Amendment negatived)
     Next we will move to amendment CPC-1.
    Mr. Cooper.
     Thank you, Mr. Chair.
    This is a fairly straightforward amendment. It deals with honest but mistaken belief in the section that pertains to when that defence cannot be advanced.
     Under proposed paragraph 153.1(5)(c), the intent of the language is essentially to codify the Ewanchuk decision. The Canadian Bar Association raised a concern in their submission that the word “actively”, which is added to the subsection in proposed paragraph 153.1(5)(c), could cause some confusion as to what the meaning of that word is.
    My amendment would simply remove that word to remove any ambiguity or any issues that might arise in terms of litigation over whether there is a meaning to that word “actively” so that the subsection would plainly reflect paragraph 49 of the Ewanchuk decision, which I believe is the intent of the subsection.
    Thank you very much.
    Are there comments, colleagues?
    Mr. McKinnon.
    I wonder if the officials could give us their view of this in relation to Ewanchuk.
    This amendment codifies the legal principle that the defence of honest but mistaken belief in consent is not available if there is no evidence that a complainant has positively expressed agreement to the sexual activity, which can be done through words or conduct. The principle is clearly articulated in Supreme Court of Canada jurisprudence, which informed the drafting of this amendment.
    Here are the examples that I would like to share with you today.
    First, Ewanchuk clarifies that a belief that silence, passivity, or ambiguous conduct constitutes consent is a mistake of law and provides no defence. That's at paragraph 51. This principle, expressed in another way, requires the accused's belief to be based on something positive the complainant said or did. Ewanchuk also cites commentators who observed that the notion of consent connotes active behaviour. That's at paragraph 27.
    Also, Ewanchuk notes that, as you've pointed out, for the purposes of the honest but mistaken belief in consent defence, consent means that the complainant has affirmatively communicated by words or conduct her agreement to engage in sexual activity. As you noted, that's at paragraph 49.
    Furthermore, in R. v. J.A., the Supreme Court of Canada's 2011 case, the court noted that the definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity, and that's at paragraph 66.
    The court's various articulations of the overarching principle that consent must be expressed positively inform the way in which this proposed amendment is drafted. Its objective is to codify with clear meaning.
    It should also be noted that English and French versions of statutes are both authoritative but are not translations of each other. The French version uses the verb manifester, which is also the verb used in paragraph 49 of the French version of Ewanchuk. Unlike “express” or “communicate”—that verb in English—manifester clearly implies positive action or expression. The notion of positive expression is further highlighted by the phrase de façon explicite in the French version of C-51.
    “Affirmatively expressed by words or actively expressed by conduct” conveys the same meaning, the meaning that the Supreme Court of Canada has articulated in various places throughout the jurisprudence—not just paragraph 49 of Ewanchuk—as well as in the French version, which is equally authoritative.
    I would also note that in the LEAF submission, the Women's Legal Education and Action Fund, they have noted that it is their view that this does reflect a codification of this principle.
    Thank you.

  (1555)  

    Thank you.
    Mr. McKinnon, do you have another question?
    What I'm hearing is that this proposed change also reflects the Supreme Court judgment. I like this amendment. I wonder if we could have a bit of a—
     I have some questions. Does anybody else have questions for the officials? I would like to understand something.
    I understand that the French and English versions are drafted separately to try to convey the same meaning and so they are not translations of one another. Where my question lies, and the concern I have, is that in the French version we're using the words

[Translation]

“...à l'activité a été manifesté de façon explicite par ses paroles ou son comportement.”

[English]

    That means paroles and comportement are using the same adjectives—the same words—to tell us what can or cannot be consent. Both words and behaviour or conduct are using the same adjectives.
    In English, instead of using the same words, we're using two different phrases: “affirmatively expressed by words” and “actively expressed by conduct”.
    If I was translating it based on the French, I would say “affirmatively expressed by words or conduct”. Can you explain to me the difference between “affirmatively” and “actively”, so that I can understand why we're using different words for words and for conduct in English but not in French?
    I want to say that I speak French but I'm not francophone, so I'm not an authority on the intricacies of the French language.
    When we sit in a drafting room and we draft, we try to achieve the clearest way of expressing the same thing in both languages. Sometimes that means using different words in each language because of what the words mean, respectively. That's what happened here.
    We have assured ourselves that the meaning is the same, and that it is expressed clearly in both languages. I believe that “actively expressed by conduct” versus “affirmatively expressed by words”, was just considered to be a better way of expressing the concept of positive action or words, because one adverb fit better in English with words and the other with conduct. It's as simple as that.
    I want to stress the fact that the two versions have to be read together, and their objective is to codify the principles in the Supreme Court of Canada jurisprudence, not just in paragraph 49 but also in the other locations that I noted. The words are carefully chosen to reflect that.

  (1600)  

    Thank you.
    Colleagues, have you any further comments?
    Mr. McKinnon.
    Could we have a brief recess so I could talk with my cohort here about this?
    Colleagues, is that okay?
    We'll have a brief recess.

  (1600)  


  (1600)  

    Thank you very much, colleagues.
    We'll resume the meeting. I appreciate that.
    Are there any further interventions on CPC-1?
    Mr. Fraser.

  (1605)  

    Thanks, Mr. Chair.
    I've thought about this, and I appreciate the purpose and intent behind the amendment. I recognize what the Canadian Bar Association said. However, I accept the officials' explanation as to its codifying Ewanchuk and adding the word “active”. If you look at paragraph 27 in particular, it talks about “active behaviour”. There are other paragraphs indicating that the conduct must be more than passive, which is the state of the law right now in common law. J.A. uses the words “active consent”.
    I had some difficulty until it was explained regarding the difference between the French and the English, but in French the word manifesté I believe is different from the word in English, and they have to be read together.
    While I appreciate the intention of it, I think the bill as drafted correctly identifies the state of the law after Ewanchuk and J.A., and that's why I'm not going to be supporting this amendment.
    Are there any further comments?
    Mr. Cooper, do you want to close?
    I would respectfully submit that using the word “affirmatively” captures both, and using this different word, “actively”, actually creates more questions. It creates ambiguity and will result, I believe, in further litigation.
    These words were not used by the Supreme Court. The Supreme Court used the word “affirmatively”. That was what the Supreme Court used in capturing both words and conduct.
    I would respectfully disagree, and with respect to the translation, if anything this would seem to clean it up.
     Thank you.
    Let's move to a vote, then, on CPC-1.
    (Amendment negatived)
    The Chair: Now that we've had our votes on the amendments proposed to clause 10, does anyone else have any other amendments to clause 10?
    Not hearing any, we will now have a vote on clause 10 as amended.
    (Clause 10 as amended agreed to)
    (Clause 11 and 12 agreed to)
    The Chair: All those in favour of clause 13?

  (1610)  

    Just a second, we have an amendment here. It's CPC-2.
    CPC-2 and LIB-2 create new clause 13.1. As I understand it, the current clause 13 deals with section 165 of the act being repealed, and the amendments deal with section 176. My clerk tells me we have to vote on 13 before we can get to the next amendment.
    (Clause 13 agreed to)
    The Chair: I'm going to ask a question of the committee, and it's only if you all agree to do it this way.
    We're soon going to get into the substantive discussion of what should be in section 176. We have two amendments that are very similar but a bit different. It would seem logical to me that before that, we would actually make the decision that we would leave section 176 and then decide how to amend it, which would come as the identical CPC-3 and LIB-3 as part of clause 14.
    I am told that with unanimous consent we can vote on the identical CPC-3 and LIB-3 and then have the committee agree to leave section 176—
    Mr. Chair, it's LIB-2.
     Sorry. I keep using—
    It's CPC-2 and LIB-2.
    No, but I'm talking about moving to CPC-3 and LIB-3 first.
    CPC-2 and LIB-2 are both saying that section 176 should read this way. CPC-3 and LIB-3 both have the purpose of saying we're not taking out 176.
     It would seem logical to me that we would agree not to take out 176 and then decide how we want to amend 176, but only if you want to do it that way. I mean, that just seems the logical thing, to agree to leave it there and then how to change it once we agree to leave it there.
    We'd like to leave it there, but we'd like to amend it.
    For sure, but the effect of adopting CPC-3 and LIB-3 is that we're not taking it out. Then we move back to CPC-2 and LIB-2 and talk about how to amend it.
    I think we should talk about CPC-2 and CPC-3, and then go from there and we'll figure it out.
    If you'd prefer that, it's totally fine. We can go in order. We'd require unanimous consent anyway.
    All right, let's go in order.
    We come to the clauses related to modifications to proposed section 176, which are CPC-2 and then LIB-2.
    Mr. Nicholson.
    Thank you very much, colleagues.
    We believe there is certainly nothing wrong with section 176, and that protecting religious services and protecting those who conduct religious services are important.
    We made the case that most Canadians would agree that if you do anything to disrupt a religious service—and it's extended, there's a long definition in there—that is more serious than if you cause a disruption at a hockey game or you get into a fist fight in a bar. We heard testimony from the minister that there are other sections.... I would suggest that most Canadians would indicate that if you disrupt a religious service, it's not just mischief. There is something more significant to it, and much more serious. We had no problem with that.
    That being said, there was some suggestion that we could update the terminology as to who we're referring to, whether ministers and clergymen. I've put in an amendment here for “religious official”. That's the term we have used in the past, and it includes everybody. With regard to the remarks that it refers to "him", we refer to "their", so that it's completely neutral in that sense.
    I remember when I first discovered this. They talked about this bill at second reading. I remember mentioning to my colleagues across the aisle that if they talked to their constituents, I think many of them would agree there is something very significant and serious about the disruption of a person's religious freedom. All the debates we had earlier this year seem to confirm.... Why would we take his out?
    We have had an excellent response from people. I can tell you truthfully that I had 900 emails this weekend. My office said there were 900 emails from people in support of keeping section 176 as it is. I have no problem with changing the words, but I can tell you that the interpretation of these words has been expanded and that they do include....
    I was at National Defence, and the term “minister” or “clergy” referred to and encompassed rabbis, imams, anybody else. If you check with the courts, they aren't always narrowing the definition of something. For the most part, they expand the definition. We have not excluded people from other religions besides Christianity.
    With respect to whether you're referring to “him” or “her”, it has been established that when it refers to “him”, it also refers to “her”. However, I changed that, as well, and I'm hoping that this will get the support of this committee.
     I believe it is consistent with what you heard from the testimony we had here, and I believe it's consistent with what you've probably heard from your constituents. I'm hoping that this will pass.
    Thank you.
    Mr. Fraser.

  (1615)  

     Thank you, Mr. Chair. I appreciate the comments by Mr. Nicholson and his advancing of the amendment. A very similar amendment is brought on the same clause by me. It's the LIB-2 amendment.
    I want to say at the beginning that I think there are many parts of section 176 that are covered by other sections of the Criminal Code; however, when we are looking at the totality of this, it is different from some of the other provisions that would be deleted from the Criminal Code. This one is clearly not unconstitutional. I don't believe that it's clearly obsolete. There have been charges laid in recent times.
     Also, I don't think it's clearly redundant, but I want to emphasize that there are many provisions of the Criminal Code that do cover almost everything in here. I think this is a little different and is not clearly redundant. I want to say, though, that if people are charged under other sections of the Criminal Code for causing a disturbance, or for other things that could amount to what is covered already in this section, I would suggest that clearly would be an aggravating factor on sentencing and would be treated differently, based on the circumstances of the offence.
    However, in view of all of the other arguments that we heard at committee, and given that there is a seeming rising volatility in the level of intolerance that should be completely rejected, I'm persuaded that section 176 should remain in the code, that it does serve some purpose. I think that modernizing the language, as I have put forward in LIB-2, with these in there, but also a more inclusive type of definition to include “spiritual” service along with religious service, would be the right way to go.
     All that said, I agree almost entirely with Mr. Nicholson and the rationale behind keeping section 176. That is why I proposed LIB-2. On the wording regarding the modernization, I prefer my amendment. That is why I won't be supporting his amendment, but voting in favour of mine, which is almost the same thing. I prefer the wording, and that's why I brought it forward.
    The thing is that we all agree on the substance, then. We just disagree on what wording we want to use. That's a good thing.
    Mr. MacGregor.
    Thank you, Chair.
    In the summer, when I first read through Bill C-51, my eyes passed right over section 176 being repealed. It didn't really cause much of an issue until I started receiving a trickle of correspondence, which has now evolved into an absolute avalanche.
     At first, I was prepared to accept the government's argument that the offences in this part of the Criminal Code can most certainly be covered in other sections, but I think I've been absolutely convinced that it needs to be kept in the Criminal Code, simply because it has very significant symbolic value for the people involved. I have a pile of letters in my hand right now that were written to me by children who obviously feel this is very important to them. I'm really heartened by Mr. Fraser's amendment, because I think that as a committee we've listened to the evidence, the testimony, and I believe we've reached a consensus on this.
    With respect to Mr. Nicholson's amendment, in looking at his and Mr. Fraser's, I do find Mr. Fraser's language a bit more inclusive, but I just love the fact, colleagues, that both of your amendments were reached in the same spirit. Thank you.

  (1620)  

    We'll go to Mr. Boissonault, and then back to Mr. Nicholson.
    It's like reading the National Post on a regular basis; sometimes, when I agree with the articles, I have to check my progressive values. I'm agreeing with Mr. Nicholson on this, on retaining section 176. I think we're in the same ballpark and just talking about a few changes in wording, so I will be voting against your amendment, Mr. Nicholson, and in favour of LIB-2.
    Mr. Nicholson.
     Mr. Chairman, the main difference between the two is the reference to “religious official”. We agree on removing “clergyman or minister”.
    As for putting in the word “officiant”, I can tell you that I've had some experience with that term. I know that it came from the public service, that particular term, because I remember that when I was defence minister they wanted the term to refer to those who provided religious guidance and support to members of our armed forces. They wanted to call them “officiants”.
    I said that the problem with it is that if you stopped a hundred people on the street, I'd be surprised if you could find anybody who knows what an officiant is, but when you talk about a “religious official”, most Canadians can understand. I think it's incumbent upon us to do what we can to make the Criminal Code as understandable as possible. The main difference there is the name.
    I did not buy into the name when I was defence minister. I said that you could call them members, religious officials, clergy, or anything, as long as it's all-inclusive for everyone. That's all I said, but I said that the term “officiant” was not a term. I know where it came from, the idea of this and how it arrived here, but again, I think if you look carefully at this you will agree with me that people understand you if you're talking about a “religious official” as opposed to an “officiant”.
    That being said, on my amendment, if you accept that, the only other change between mine and the Liberal one is to put in “a religious or spiritual service”. I have no problem with adding that to amendment CPC-2.
    Thank you.
    We have Mr. McKinnon, Mr. MacGregor, and Mr. Fraser.
    I want to ask Mr. Nicholson if he would be interested in supporting Mr. Fraser's amendment and offering an amendment to the word “officiant” to, let's say, “religious or spiritual official”.
    I have no problem with the term “preventing a religious or spiritual official from celebrating a religious or spiritual service”. I don't mind putting in both of those. It's the word “officiant”. I've always said that people don't understand what that term means.
    I guess I'm wondering if we could, then, amongst ourselves, agree to move Mr. Fraser's motion and have Mr. Nicholson
    You could move mine and add the two words to it, Mr. McKinnon.
    Voices: Oh, oh!
    Hon. Rob Nicholson: As a matter of fact, would you like to move an amendment...?
    If Mr. Cooper will move an amendment, we'll use the term “religious or spiritual” with respect to the official and “religious or spiritual” with respect to the service.
    Yes, I will make that amendment.
    That, I think, should include everything.
    Mr. Cooper is proposing an amendment to amendment CPC-2 that would, on proposed paragraph (a) change the words to read “a religious or spiritual official from celebrating religious or spiritual service”, adding the words “or spiritual” after the word “religious”, and presumably, in proposed paragraph (b) saying, “knowing that a religious or spiritual official is about to perform”.

  (1625)  

    That's correct.
    Do we have interventions on the amendment?
    Mr. MacGregor.
    Chair, I'm curious to know if the department could provide any opinion on this discussion and what they think makes more sense.
    I'll do my best to tell you what I understand. If I understand what you're proposing in terms of paragraph (a), it would be to add “a religious or spiritual official from celebrating a religious or spiritual service”. Then, I think, you would have to make a similar amendment on the last line where you talk about “religious office”.
    There are three places.
    You'll carry that through. Then, as you've said, you'd make the same change in paragraph (b). Amendment CPC-2 also talks about, in proposed subsection 176(2), wilfully disturbing or interrupting a “religious service”. I'll point that out. You follow that all the way through.
     All the way through. That's what Mr. Cooper was suggesting.
    It would appear to address the issues raised in both of the amendments. As for one formulation over another, I think that's ultimately for you to decide.
    The fact that you speak of an “officiant” who is performing a religious service, I think provides the context that is helpful from a criminal law perspective, versus whether you said “a religious official” performing a religious service. I think it takes you to the same place.
    At the end of the day, your focus is the same.
    Thank you.
    Mr. Fraser.
    I appreciate the attempt here, but, first of all, with regard to “officiant”, I don't think there's a hard time understanding what that means, especially when it's in the context of “an officiant from celebrating a religious or spiritual service”. The definition is there, and what follows the word “officiant”.... I mean, we are talking about the difference between an “official” and an “officiant”. I believe it is clear in what it says. I believe Canadians would understand what that means.
    Rather than trying to play around with all the words in CPC-2, my take is that I will vote against CPC-2 in favour of LIB-2, which doesn't require all of these amendments.
    Okay.
    Mr. Cooper.
    Clearly, in Mr. Fraser's amendment, he uses the term “religious or spiritual service”. In that context, by simply adding “religious or spiritual official”, frankly, it is a lot clearer in capturing the language that Mr. Fraser put in his amendment.
    I would submit that CPC-2 is a lot clearer to understand, and it captures the language in Mr. Fraser's amendment, whereas his doesn't.
    Okay.
    Mr. MacGregor.
    I think I've been convinced by Mr. Cooper's argument on the subamendment. In just following the language that Mr. Fraser used, it's a good argument.
    Again, colleagues, so that we know what we're voting on, I will read it in its entirety so that everybody understands. It will now read, in subclause13.1(1), proposed paragraph 176(1)(a), “by threats or force, unlawfully obstructs or prevents or attempts to obstruct or prevent a religious or spiritual official from celebrating religious or spiritual service or performing any other function in connection with their religious or spiritual office, or”.
    Tell me if I am ever wrong, Mr. Cooper.
    Then, in proposed paragraph 176(1)(b), “knowing that a religious or spiritual official is about to perform”. That's the only change in paragraph (b)
    Then moving to proposed subsection 176(2), it would say, “Every one who wilfully disturbs or interrupts a religious or spiritual service or an assemblage of persons met for religious or spiritual worship”.
    Is that basically correct?
    That's right.
    Colleagues, those are the subamendments in each place.
    Mr. McKinnon, did you want to intervene?
    I also appreciate the attempts to bring everything into line, but I agree with Mr. Fraser.
    There is more wording in this amendment. There are more wording differences than just that. Also, in amended 176(2), I don't think we need to have it in there at all. I think the original proposed subsection is broader, or at least as broad.
    On balance, after hearing all of the excellent arguments, I'm going to support Mr. Fraser's motion.

  (1630)  

    Okay.
    Right now, colleagues, unless there's any other discussion on the amendment to the amendment, or the subamendment, I'm going to call a vote on the subamendment, meaning the changes I just read out.
    It's Mr. Cooper's amendment to Mr. Nicholson's motion.
    (Subamendment agreed to)
     Now we come back to the principal amendment from Mr. Nicholson, as amended by Mr. Cooper's subamendment.
    Mr. Nicholson, do you want to close?
    I think it's the right thing to do.
    I'm very appreciative of all the individuals who have contacted me. I'm sure other colleagues here were quite concerned that in this day and age, we would be removing the specific protection for religious services and those who perform those services.
     Thank you.
    We're voting on Mr. Nicholson's amendment CPC-2.
    (Amendment as amended negatived [See Minutes of Proceedings])
    The Chair: Now we move to the very similar LIB-2.
    Mr. Fraser.
    I don't think I really need to comment. I think everything was said while we were discussing the previous amendment, which was extremely similar. I reiterate everything I said.
    That was brief and succinct.
    Are there any further comments on LIB-2?
    Ms. Khalid.
    Thank you.
    I wasn't sure if I should comment or not. I just think it's noteworthy to mention the amount of testimony we heard. One witness came in just after having testified at the heritage committee with respect to motion 103. That motion was referred to a lot during all the testimony we heard.
    I'm very appreciative of this committee understanding what Canadians want and of our going ahead and putting this section back into the Criminal Code.
    Thank you.
    There are no amendments proposed to change “officiant” to anything else? No. Okay.
    We'll move to the vote on LIB-2.
    (Amendment agreed to [See Minutes of Proceedings])
    (On clause 14)
    The Chair: We have identical amendments, CPC-3 and LIB-3. Let me just explain what I believe is the effect.
    CPC-3 and LIB-3 will essentially restore, except as we amended it, the previous version of section 176. LIB-2, which was just adopted, deals with the first parts but not the old subsections 176(2) and (3). In the event that CPC-3 and LIB-3 are adopted, we restore (2) and (3) as they originally existed in section 176 of the Criminal Code.
    I think that was everybody's intention, but I just want to be clear to everybody that this is what I believe it means. Since they're identical, I consider them both moved, because one would defeat the other anyway.
    (Amendment agreed to [See Minutes of Proceedings])
    (Clause 14 as amended agreed to)
    The Chair: Colleagues, does anybody have an amendment for clauses 15 through 18? If not, is there any objection to voting on clauses 15 through 18 together?
    Not seeing any objection, shall clauses 15 through 18 carry?
    (Clauses 15 to 18 inclusive agreed to)
    (On clause 19)
    The Chair: We move to amendment LIB-4, which is identical to LIB-1 except in a different place.
    Mr. Fraser.

  (1635)  

    Thanks.
    I'll reiterate everything I said in connection to amendment LIB-1. Basically, this adds the wording that clearly consent must be contemporaneous, at the time of sexual activity, and it must be ongoing. A person cannot consent in advance, which effectively codifies J.A. I believe this language will make it more clear by adding this wording before we get to the sections that are already in the bill. It clearly identifies that “whether no consent” is a question of law, and ensures that the defence is still available for a mistaken belief in consent as it pertains to a mistake of fact.
    For those reasons, and similar to the reasons I gave in LIB-1, I would seek to have this amendment passed.
     I'll just note that, if we don't amend it, then clause 10 and clause 19 will be different, which would also be problematic.
    That's a good point.
    Are there any further comments?
    I'll just note again that the word “termes” in the French has to have that “e” again. It's the same as LIB-1, the same error.
    (Amendment agreed to [See Minutes of Proceedings])
    The Chair: We will now move to the next one on our list here, PV-1. Ms May, unfortunately, had to be at a different committee, but her amendment is deemed moved for discussion.
    Does anyone wish to speak to Ms. May's amendment?
    Mr. MacGregor.
    Yes, it essentially covers the same part that NDP-2 does, and since NDP-2 is worded in exactly the same way as NDP-1, I already know this committee's opinion on that. I think Ms. May has certainly taken it a bit further than what I had originally imagined, but yes, I'm prepared to support what she's intending to do here.
    I'll just note, because they're amending the same lines, in the event PV-1 is adopted, NDP-2 cannot be moved because they're amending the same lines.
    Does anyone else wish to speak to this amendment?
    (Amendment negatived [See Minutes of Proceedings])
    The Chair: Now we move to NDP-2.
    Mr. MacGregor.
    I don't really have much to say, Mr. Chair. I think it was all said in a previous round for NDP-1, so I'm prepared to go to a vote.
    Thank you very much. Does anybody else wish to speak?
     Mr. Nicholson.
    It's similar to the amendment, the rationale and the wording that you had earlier today with respect to consent. Fair enough. It's the same thing. Thank you.
    (Amendment negatived [See Minutes of Proceedings])
    (Clause 19 as amended agreed to)
    (On clause 20)
     Next we have LIB-5.
    Mr. Fraser.

  (1640)  

    Thank you again.
    Similar to both LIB-1 and LIB-4, the language added here on page 9 would make the language consistent on the topic of mistaken belief in consent. I would suggest that, since we've already made those amendments, this one would naturally follow.
    You're adding the reference to proposed subparagraph 273.2(a)(iii), which was missing from the law.
    That's right.
    PV-2 would not be able to be moved in the event LIB-5 is adopted because PV-2 amends the same line.
    Is there any discussion on LIB-5 beyond what Mr. Fraser mentioned?
    Mr. MacGregor.
    Since Mr. Fraser is seeking to amend a section, the exact same section that Ms. May is also seeking to amend, Mr. Fraser, do you have any comment on what Ms. May is attempting to do with PV-2?
    I believe the contemporaneous section, the changes that we made in LIB-1 and LIB-4 dealing with contemporaneous, the necessity of it being at the same time as the sexual activity, addresses this issue where she's talking about consent being vitiated, including those referred to in subsection.... She's talking about the consent being vitiated, or there being no consent, and I think we've already addressed that in LIB-1 and LIB-4, in my view, so I don't see the need for it now that we've made those changes.
    (Amendment agreed to)
    PV-2 at this point is not moveable, so we will move to PV-3.
    On amendment PV-3, Ms. May not being here to speak for herself, does anybody wish to speak to it?
    This is taking out the words “there is no evidence that” and then making a negative, “to not affirmatively”, as opposed to “was affirmatively”. That's her change. Since she is not here, I can't explain why but that is the change.
    (Amendment negatived)
    The Chair: Mr. Cooper on amendment CPC-4.
    Mr. Chair, this is in line with amendment CPC-1, which was to remove “actively” from the section so the arguments are the same.
    (Amendment negatived)
    (Clause 20 as amended agreed to)
    (Clauses 21 and 22 agreed to)
    (On Clause 23)
     On clause 23, we have amendment LIB-6, Mr. Fraser.

  (1645)  

    I won't be putting forward that amendment.
     (Clause 23 agreed to)
    (Clause 24 agreed to)
    (On clause 25)
    On clause 25, we have the identical amendments CPC-5 and LIB-7.
    Mr. Cooper.
    I have significant concerns about the changes to the Criminal Code with respect to the application process for defendants who have records related to the complainant. I think there are real distinctions between that scenario and records that are in the hands of third parties, which is why I voted against the previous clause, but at the very least, I believe there is absolutely no reason why one would have to go through the application process in the case of a witness, so it would simply remove “witness” and relate specifically to the complainant.
     Thank you.
     Mr. Fraser, you proposed an identical amendment, so would you like to speak to it too?
    Exactly. I agree with Mr. Cooper, and I think the evidence we heard was pretty emphatic that having a witness in addition to the complainant would be very problematic, and I don't think it likely that was the intention of the bill. I agree, and that's why I put forward amendment LIB-7. They say the same thing. I support the idea.
    (Amendment agreed to)
     On amendment NDP-3, go ahead, please, Mr. MacGregor.
    Thank you, Chair.
    My amendment seeks to insert after line 15 on page 12 a new paragraph. I know we're getting into lots of decimals here, but this would create a new paragraph 278.92(3)(g.1) with the simple wording, “the complainant's expectation of privacy”.
    My rationale behind moving this amendment is that the committee heard that there is a need to clarify the admissibility of a complainant's private records at trial when in the hands of the accused. Specifically, I believe we had Professor Emma Cunliffe of the Peter A. Allard School of Law at UBC, and she stated the following:
I agree with the Criminal Lawyers' Association that there is space for clarification. If we return to the case that's the genesis for this change, the case of Shearing, the facts in that case were that the complainant's diary had been stolen by the accused person, and the court held that the means by which the accused person came into possession of it were not relevant to the admissibility of the diary at trial. That's being addressed by a provision such as this.
     She goes on to say:
If we think about the possibility, as exists in some case law, of an accused person improperly obtaining access, for example, to someone's Facebook profiles or confidential email records, there's a significant public policy interest in ensuring that there are procedural safeguards before those kinds of materials can be aired in court.
     I think she was agreeing with what the Criminal Lawyers' Association said in its submission, that the link between the complainant's privacy interests and the recording question is not apparent on the face of it. My intention is to add a little bit more specificity with regard to a complainant's expectation of privacy for this section.

  (1650)  

    Thank you.
    Mr. Nicholson.
    I suppose it might complicate things somewhat in that everyone's expectation of privacy is very subjective. When I saw this and put it into context, it seemed to me that with regard to the right of privacy, everything is covered in the previous section, that says the judge shall consider:
(g) the potential prejudice to the complainant’s personal dignity and right of privacy;
     It seems to me that it would be a function of the judge to make that decision here and to take into consideration all of those things. I don't see the necessity for this.
    Thank you.
    Mr. Fraser.
    Mr. Chair, I agree with Mr. Nicholson on this. I think it's already covered but we may be getting in there a subjective element about the complainant's individual expectation, which could pose some problems for a court trying to determine that.
    I think it's better not to accept this amendment.
    Maybe I could clarify this with the officials. In the proposed amendment on the complainant's expectation of privacy, as I understand the law, there's a reasonable expectation of privacy. It's not the complainant's own expectation if it's unreasonable.
    Am I correct that this would change the law or potentially create an element that is, as Mr. Nicholson said, subjective no matter how unreasonable it is?
    I have to agree that it does say something very different from what section 278.1, which defines “record”, does. That section refers to a reasonable expectation of privacy and to privacy statutes as well, so you're looking at a very particular type of information. I also agree that it might be quite difficult to ascertain what the complainant's subjective perspective is, particularly since she or he would not be a compellable witness at the voir dire.
     I'd also point out that this list is informed by lists that occur in other locations in the code and particularly in the third-party record, so there would be a discrepancy between the lists. As we know, discrepancies can have unintended effects in terms of interpretation. I suggest that as well for consideration.
     Thank you.
    Is there anything further, Mr. MacGregor?
    Nothing further.
    (Amendment negatived)
    (Clause 25 as amended agreed to)
     Colleagues, there are no amendments proposed between clauses 26 and 43. Does anybody have any amendments between clauses 26 and 43 that they would like to raise now?
    If not, does anyone have any objection to lumping together clauses 26 to 43 for the purposes of the vote? I am not seeing any objections.
    (Clauses 26 to 43 inclusive agreed to)
    The Chair: Next, we move to the new proposed clause 43.1, which is LIB-8.
    Mr. Fraser.
    Thanks, Mr. Chair.
    This is basically a technical amendment. The current bill gets rid of subsection 376(1) of the code dealing with trading stamps, and it leaves in, at section 379, the definition of a trading stamp. It serves no useful purpose, and therefore this amendment would delete the part that's not necessary anymore.
    (Amendment agreed to [See Minutes of Proceedings])
     Between clauses 44 and 81, again, there were no amendments proposed. Does anyone have any amendments that they would like to propose between clauses 44 and 81?
    Colleagues, would you be willing to lump together clauses 44 through 81?
    Yes, Mr. Nicholson.

  (1655)  

    I'd like to go to clause 73. There was an issue that—
    Can we vote on clauses 44 to 72, and then come back to 73?
    Exactly, please do.
    (Clauses 44 to 72 inclusive agreed to)
    (On clause 73)
     Mr. Nicholson.
    Thank you very much.
    This is the new requirement that charter statements should be put into the legislation. I really think this is unnecessary. The Minister of Justice gets advised on all pieces of legislation and takes those into consideration.
    Clause 73 imposes a requirement to table a statement setting out any potential effects on the Charter of Rights and Freedoms of any bill introduced in the Senate and the House of Commons. This means that, regardless of whether the minister finds any inconsistencies, or any questions at all, they have to table this legal opinion.
    First of all, I don't think it's necessary. The minister—and indeed all ministers—is advised, and certainly the Minister of Justice has a special responsibility of that. To have this now as part of the legislation.... Do you want to add the Canadian Bill of Rights or the British North America Act? You could put everything in there that complies with the Criminal Code. Do you know what I mean?
    These are all important constitutional measures, though not the Criminal Code, which is a piece of federal legislation. However, that being said, I don't believe it's necessary and I can't support that. I would like to remove that.
    Thank you.
    The way to do that would be to vote against the clause.
    Exactly, and that's the reason I'll be voting against it.
    Colleagues, do you have comments on what Mr. Nicholson mentioned?
    Ms. Khalid.
    Thank you, Mr. Chair.
    I was actually very happy to see this insertion, because I think it gives Parliament and our minister more accountability in respecting our Charter of Rights and Freedoms in the important legislation that we put forward. I think this is a great step for our current minister, and ministers who may come forward in the future.
     Thank you.
    Mr. MacGregor.
    Following up on what Ms. Khalid said, we don't know what future governments may be like and what their intentions may be, but codifying this requirement gives Parliament that extra bit of oversight, which is a very important role that we serve in. Yes, I certainly appreciate receiving those charter statements. We may not always agree with them, but at least the effort is being made.
    Thank you.
    Thank you.
    For the purposes of clause 73, which we'll now vote on, if you agree with Mr. Nicholson's comments, you would vote against it carrying, and if you don't agree, you'd vote in favour of it, unless you have different reasons for why you don't want it to carry.
    (Clause 73 agreed to)
    The Chair: Now we have clauses 74 through 81. Again, colleagues, does anyone have any amendments or proposed comments about clauses 74 through 81? If not, may we put them all together as a group? Okay.
    (Clauses 74 to 81 inclusive agreed to)
    The Chair: Now we move to the overall bill.
    Shall the title carry?
    Some hon. members: Agreed.
    The Chair: Shall the bill as amended carry?
    Some hon. members: Agreed.
    The Chair: May I report the bill as amended to the House?
    Some hon. members: Agreed.
    The Chair: Shall the committee order a reprint of the bill as amended for the use of the House at report stage?
    Some hon. members: Agreed.
    The Chair: Colleagues, I really appreciate your getting through this in a very timely fashion. I'm going to call a brief recess, and we're going to have an in camera session for two minutes to agree on our next meetings after the break.
    It will be a brief recess. If anybody wants to talk to a member, you have five minutes to do so, and then we're resuming.
    [Proceedings continue in camera]
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